People v. Rivera

286 A.D.2d 235, 729 N.Y.S.2d 481, 2001 N.Y. App. Div. LEXIS 7926

Opinions

Order, Supreme Court, New York County (Herbert Altman, J.), entered September 23, 1999, which granted defendant’s motion to suppress physical evidence and identification testimony, reversed, on the law, and the matter remanded for further proceedings.

As the motion court found, once the minivan in which defendant was a passenger ran a red light and narrowly missed colliding with the unmarked police vehicle, the police were justified in stopping the van (see, People v Ingle, 36 NY2d 413). Our point of departure with the court is its determination that the police could not properly chase the defendant-passenger when they observed him, immediately upon the stop, “jump out and run.” The court found that “during his pursuit” Officer Dietrich observed defendant grasp his waist area and then saw a gun in his right hand. However, the officer’s precise testimony, which the court fully credited, was that “[defendant] was grasping more or less as soon as he got out of the vehicle out of his waist area” (emphasis added). It has long been held that a bulge or grasp at the waist is “telltale of a weapon” (People v De Bour, 40 NY2d 210, 221; People v Reyes, 91 AD2d 935, 937). The Court of Appeals observed in People v Benjamin (51 NY2d 267, 271) that it is apparent to an experienced police officer that a handgun is often carried in the waistband, and that “law-abiding persons do not normally step back while reaching to the rear of the waistband, with both hands, to where [] a weapon might be carried.” It is equally apparent to an experienced police officer that law-abiding persons do not normally grasp at the waist while exiting a car quickly. In this rapidly developing situation, upon observing defendant’s grasping motion, the officer had reasonable suspicion of criminal activity, which justified the chase that followed (People v De Bour, supra, at 223). It is not necessary to engage in speculation as to the possibility that defendant was the driver who violated the traffic laws, particularly since the motion court found that defendant was a passenger. It is defendant’s own conduct that provided the predicate for the chase within the parameters delineated in People v Holmes (81 NY2d 1056). Of course, given that the police were justified in pursuing defendant, their recovery of the weapons also was lawful (see, People v Leung, 68 NY2d 734, 736). Concur — Andrias, Ellerin and Rubin, JJ.